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Tuesday, 22 March 2011

Two Lawsuits Settled

Two recent legal developments, the first not very interesting and the second very:

First, the Ansel Adams Publishing Rights Trust and Rick Norsigian et al. have settled their lawsuits over what have become known as the "Uncle Earl" photos. To recap: hoofbeats were heard; zebras were postulated; random sundry supposed zebra experts were trotted out in support of the zebra hypothesis; adroit (if unwarranted to the point of being fraudulent) PR, making the story into a Story, was spread liberally around the culture. Actual equine experts begged to differ; the actual horse was found, and found to be nothing but a horse; everybody sued everybody else; and the case was settled but nobody gets to hear exactly how, beyond the fact that the zebra guy can't continue claiming the horse was a zebra.

The interesting things I learned were: 1. It's not art unless the experts say it is; 2. negatives aren't actually worth much; 3. if you make a nice heartwarming story that follows an accepted sappy narrative familiar to the public, and attach a preposterous enough number to it, people will eat it up; and 4. we probably have a real problem with reporting in this country, since way too many news outlets are content to repeat appealing stories uncritically even though they're untrue.

And the saddest thing about this case? Mr. Norsigian apparently still believes that the negatives are the long-lost work of Ansel Adams. On the one hand, this gets him (although not necessarily his lawyers and advisors) off the hook for deliberate, cynical fraud, but on the other hand, it indicates that he's probably deluded—in my opinion. Can't let go of the lottery dream?

(I'll note in passing that Norsigian did win the reductio ad Hitlerum.)

Just dessertsSecond, Richard "A Cheeky Fellow" Prince lost a Fair Use lawsuit. Holy smokes, Batman, there's still a little justice in the world and a little sanity in the courts! This will be appealed, but...well, all right.

Rob Haggart at A Photo Editor lays out the whole story in admirable detail, so I'll let you read about it there. The short synopsis: Richard Prince, the infamous second-worst appropriator of other peoples' photographs (the first-worst—shall I say "in my opinion" again?—is Sherrie Levine, who made same-size, unaltered duplicates of Walker Evans photos and exhibited and sold them as her "artwork"—she was allegedly commenting on the nature of appropriation, or something like that)...I'll begin again: Richard Prince, most famous for rephotographing a Marlboro Man ad and for some unfathomable reason deeply beloved of deep-pockets Consumers of Art, had a show of artworks derived from a number of Patrick Cariou photographs from Cariou's book Yes Rasta. Cariou sued everybody concerned, and won.

Most amazing quote from the decision (I'm highlighting this from Rob's highlights):

Defendants [Prince et al.] assert that Cariou’s Photos are mere compilations of facts concerning Rastafarians and the Jamaican landscape, arranged with minimum creativity in a manner typical of their genre, and that the Photos are therefore not protectable as a matter of law, despite Plaintiff’s extensive testimony about the creative choices he made in taking, processing, developing, and selecting them. Unfortunately for Defendants, it has been a matter of settled law for well over one hundred years that creative photographs are worthy of copyright protection even when they depict real people and natural environments.

So if photos are mere compilations of facts arranged with minimum creativity, why didn't Richard Prince just go take his own? Hasn't he got minimum creativity?

As for appropriation art in general: it was interesting as a idea—I can see the point of the Marlboro Man piece—well, one, anyway. About as interesting as deconstructing an episode of "The Partridge Family" or an old Lawrence Welk broadcast. Sometimes it's cultural commentary via recontextualization; sometimes it's just stealing. Either way it's very '70s. Time to cut it out and move on.

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Featured Comment by latent_image: "Finally, the Prince has no clothes."

You see, Richard Prince filled the Guggenheim last year. I estimate that less than 1% of the people viewing his work even realized they are re appropriated.

The artist has always tried to get away with easier (especially since Warhol popularized it), the problem isn't with the artist, it is with the institutions, who, like the movie industry, cannot formulate original ideas.

fascinating stuff indeed. I am a lawyer myself and consider writing a paper on the right to photograph. Well, this right and the copyright are of course different matters, but related.

What do you think of my latest oeuvre, “Big whore”? It is a billboard of Britney Spears latest Album in Berlin, Germany. Someone wrote “Big whore” on it and drew vampire’s teeth. Along came I and took a photo of it with my new Sony Alpha 55 and my old Minolta AF lens 1:3,5 – 4,5 70 – 210 mm. I first wanted to take the picture with my old Minolta AF lens 1:1,4 85 mm, but the distance was too short so I had to choose the zoom. I relied on Auto + for exposure and on Autofocus and used the electronic level of the camera.

Now, is it my work?

Also, there is an artheoretical question: You know Matisse’s famous: “Ceci n’est pas une pipe”.
Well, “Ceci n’est pas une CD de Britney”. It is a photo of a billboard with a photo of a CD of Britney.
Has Barthes written something about that? I really have to get his book.

Since we're on the law, I find this development particularly chilling. PDN reports that legislatures in several states are making it a crime photograph farms without the owner's permission. Even from a public vantage point in some cases. The claim is that this protects the farms from damaging publicity from animal rights activists – and I suppose it saves them the trouble of needing to prove libel (or perhaps reveals a fear that they could not).

On a lighter, and tangentially related note, Percival Everett's short story The Appropriation of Cultures is almost too good to be true. The story telling is brilliant, the premise is right on the edge of believable, the result is uplifting. It is well worth the read (the story is published in his collection Damned If I Do).

I'm interested that you say you could see the point in Prince's rephotographing of the Marlboro photographs. I thought the concept was ridiculous, until I went to see the show, and then...I saw what he was doing, and it *did* make sense. If somebody had told me those were the originals, I would have been appalled by the pro-tobacco propaganda; since they were stolen, they were a harsh and cheeky comment on the originals...

I'm not a lawyer, but I think there'd be a strong argument that if you're going to appropriate something, the appropriation has to contribute more than the original art work...even though Prince changed nothing except size, I think he did that with the Marlboro stuff. Sherrie Levine did not, and neither did Prince with the Rasta stuff, even though he changed the Rasta work more than he did the Marlboro stuff...The critical thing with the Rasta work is that you don't look so much at his additions as the original photos.

I could continue this commentary, except that I'm afraid that I would disappear up my own posterior vent.

What exactly is the difference, in your mind, between appropriation and collage? A matter of degree, perhaps, but is this really significant, morally, legally, or aesthetically? Why is Prince a thief, but Warhol and Rauschenberg -- both of whom used appropriated images -- aren't? What, exactly, are the consequential differences between Prince's works and and Walker Evans' 'Studio' picture, or Robert Frank's cover for Exile on Main Street?

Is it that people don't know Prince rephotographs? Well, first of all, I think most people do, and if they don't, they can read the wall text.... And second, even if they don't, since when does an artist's work become illegal because some members of its audience are ignorant?

As for appropriation being "very 70's", that's sort of like saying collage is "very 20's". It's true enough, but that doesn't mean it's over; it just means that it's become a perfectly acceptable, widespread technique, for which Prince and Levine (and a few others) deserve credit in much the same way Schwitters does.

Interestingly, as a lawyer I am thrilled by this decision. As a photographer, I'm even more thrilled by it. I think it is exactly correct both legally and morally and I would happily throw the match.

Mr. Urner:

Those laws are idiotic (and I say that as a farm boy and a supporter of industrial agriculture myself.) They will never stand up, they are just going to cause a lot of inconvenience and expense and wasted time. Not only that, they are fundamentally misguided. You cannot protect people from the consequences of their actions by trying to keep them covered up. It never, ever works.

There are a lot of issues raised here and I'm not a lawyer. Apparently Marcela is, though, and I find myself thinking of Walker Evans. The judge used Prince's statement that he "doesn't 'really have a message'" as evidence that his work is not a transformative work of art, but merely commercial. Do Evans's famous neutrality and lack of didactic intent mean that his photographs are not art? This judge would appear to think so. Evans certainly made use of others' work in his photographs, e.g. in Houses and Billboards in Atlanta (with the Carole Lombard movie poster) and other images including close-ups of promotional posters. Suppose Paramount pictures had sued Evans? Should they have won?

I'm also disturbed by the judge's apparent belief that a derivative work must comment on the original work to count as fair use. Suppose I appropriate some piece of trash in order to comment on the societal values and attitudes that it supports and perpetuates. Surely that intention is relevant to deciding whether my work is fair use, even though I am not trying to comment on the work I appropriated.

I may be defending a scumbag with these comments. If so, that's the way it works in a free society. Scumbags also get the protection of the laws, because there's no way to protect only the serious people.

I find navigating the "modern art world" difficult, mainly because I am convinced that 45% of all modern artists are charlatans, and 45% are completely out to lunch with the fairies. I also suffer from the quaint old-fashioned desire to buy something that I like to look at and can "understand".

As far as the appropriation art is concerned, Mr Prince will now no doubt understand the conventional uses of the word "appropriate": what he did was clearly not appropriate under the law, and some of his money will now be appropriated by the lawyers and for damages.

Case law has established that collages that incorporate copyrighted material can be an entirely legal use of said material and don't require the copyright holder's knowledge, permission nor any compensation.

The critical criterion is whether the individual item included in the collage is a primary or key or featured component of it, rather than merely being one of many minor/incidental components contributing to a whole.

If it is a key component, the collage artist does need to acquire rights from the original source.

This came up a few years ago around some work exhibited in a major New York museum. The collages did feature copyrighted work. The original creator of that work contacted the collage artist and the museum, both of whom readily agreed the use had been inappropriate without permission, and they compensated the original artist for the usage. Everyone acted in a stand-up and ethical way and all went away quite satisfied.

In matters of plagiarism and questions of Fair Use, it is *always* a "matter of degree." No perhaps about it.

Wait… just noticed the signature. That's not a Matisse. I think it's Derain. But it is a portrait of Matisee in the Fauvist style (and with a pipe). Hmm, well perhaps not; in any case the resemblance certainly falls under Fair Use, as the features of Matisse's face are really only a collection of facts not very creatively arranged. At least that's what Derain said in court when Matisse sued for inappropriate appropriation, claiming Derain had used one Matisse's colors.

regarding prince: this judge is insane. prince's artwork must be destroyed. yeah! commentors over at a-photo-editor clapping hands. reminds me on simpsons: "let's burn the library".

the maker of the quoted marlboro man photos, William Thompson, is whining there about Prince making profit of his photo... and he could'nt do nothing, because he sold all his rights to PM. how cool's that.

there's envy 'bout the people transfering simple photos to a piece of (high price) art. in both cases their original creators themself would *never* been able to.

there's no art without copying and there never will be. ideas and art are free.

@Ctein: That may be the case law, but if so, to quote Dickens, "the law is a ass". Prince makes no secret of his technique; he's not trying to deceive anyone, so the spectre of 'plagiarism' can be dismissed. Kathy Acker did much the same sort of thing with writing some decades ago: copying out whole swaths of other people's fiction into her own. No one minded, including the original authors, because she didn't try to hide it. Warhol didn't take the picture of Marilyn Monroe he silk-screened, nor did he design the Brillo Box, but I don't think he got sued for them, and they were certainly primary or key component of the artwork he made. Duchamp wasn't sued by the manufacturer of the urinal he repurposed into art. Granted, the last two examples weren't art in their original form -- but the Marilyn picture probably was, as much as Cariou's pictures are. I honestly don't see what the fuss is about with Prince. Photographer's generally take pictures of things they like to look at, or admire, or adore: Prince likes and adores other pictures. It's not much more complicated than that.

In this case, it seems the real issue is that Cariou's dealer cancelled his show -- which was idiotic on her part, since Prince probably gave him more publicity and credibility than he would have had otherwise. Indeed, if I were Cariou, I'd be suing the dealer, not Prince.

So Robert... send me your best RAWs and I'll go make a million printing them and selling them for a nickel each, and you won't want any return, coz like, ideas and art are free, right man, and I could/shoulda/woulda done just what you did, if I'd been there when you were, which I weren't, but it was my idea to start with, coz ideas are free.

What's that? Did you just tell me to get lost? :~)

Ideas may be free, but any individual's execution of said ideas gives them the right to protect their own input into that idea. As has been pointed out, the legality/morality of re-using an idea and claiming it as your own is a matter of degree, always.

Noting from the "A Photo Editor" site Mike linked to that Mr Prince and the Gagosian Gallery made about $18 million from this now legally proven theft, surely some large scale financial recompense is in order? The Gagosian Gallery may also wish to update its description of Mr Prince's "work". In particular he clearly has not redefined the concepts of ownership or authorship, or evolved a unique signature!

From the Gagosian Gallery:

Richard Prince was born in 1949 in the Panama Canal Zone and lives and works in upstate New York. Mining images from mass media, advertising and entertainment since the late seventies, Prince has redefined the concepts of authorship, ownership, and aura. Applying his understanding of the complex transactions of representation to the making of art, he evolved a unique signature filled with echoes of other signatures yet that is unquestionably his own.

The judge used Prince's statement that he "doesn't 'really have a message'" as evidence that his work is not a transformative work of art, but merely commercial. Do Evans's famous neutrality and lack of didactic intent mean that his photographs are not art?

Fair Use arguments get complicated very fast. Trying to explain them in a blog post or a newspaper article is like handing somebody the Quick Reference card that comes with your camera and expecting them to understand photography ten minutes later.

These decisions are not made in isolation, and the judge's opinion of the value of an artwork, or whether it constitutes "real art," does not form a significant part of the evaluation or the result in the case. The terms we (copyright lawyers) use are borrowed or adapted, in many cases, from the world of art, but they don't always mean the same thing to us that they do to art critics or artists. This must be kept firmly in mind when reading legal decisions regarding copyrights and Fair Use.

While copyright infringement is almost always a question of fact - which means every decision is unique to that pattern of fact - we have evolved tools over the past decades to aid us in our analysis of these questions. They are extensive and have developed, again, over decades and hundreds if not thousands of controversies and appeals through the legal system. We don't just make it up as we go.

However, to try to respond to your concern in a less-than-law-school-semester-long-class way, don't confuse "message" with "art." Even to the extent the law recognizes "art," art does not require a message. ("Speech" does, but not art.) Art can be cryptic, subjective or entirely ornamental and it's still art even to a copyright lawyer. However, a "transformative use" which does not significantly alter the appearance of the work being transformed requires a message only because otherwise there is no way to logically tell a transformative use from a copy. Art scholars can argue from now until the end of time whether a work is transformative, and never settle the question, and provide a lot of good scholarly and philosophical material in the meantime. But the judge has to decide who wins and who loses, and whether or not a use is transformative is a key question in deciding whether or not it is a Fair Use. So we have a methodology for determining that question. If you don't like it, either have yourself appointed to the SCOTUS and change it, or talk to your Congressperson.

I'm also disturbed by the judge's apparent belief that a derivative work must comment on the original work to count as fair use.

This is the satire v. parody distinction, and it is established SCOTUS precedent. However, it's precedent for a very good reason and it's analogous to what I just said about transformative use. (Including the part about having to have a specific methodology so we can decide the questions, settle the controversy, and get the stupid case off the docket sometime before the Sun runs out of hydrogen.) Obviously to comment on a specific work, you must provide sufficient context to identify the work on which you are commenting. Therefore we give you much more latitude to copy it or elements of it. Once you are commenting on some *other* work, we give you much less, because again logically speaking it's almost impossible to make a distinction between a "legitimate" satirical use of one work to "comment" on another, and a BS excuse as to why your copying isn't just... copying.

To put my last point more succinctly and more forcefully: regardless of what you might think of Prince's work, the day we let any lawyer, any judge (including the Supreme Court), or -- God forbid -- any Congressman tell us what is or isn't art, is the day our entire endeavor become both pointless and worthless.